ADJOURNMENTS

As to whether the court adjourns a matter or not is subject to the court’s discretion – however, the court must exercise this discretion judicially. An appeal court will only intervene in discretionary decisions when there is demonstrable error – such as a denial of natural justice: House v The King [1936] HCA 40.

A court must take into account a large number of competing factors in determining whether a party should be granted an adjournment or not. A number of principles that the court is to take into account when dealing with these competing factors can be extracted from DPP v Gursel Ozakca & Anor [2006] NSWSC 1425 and DPP v Chaouk & Anor [2010] NSWSC 1418 (both of which are set out below along with the relevant sections of the Criminal Procedure Act 1986) namely:

A party is to be given a reasonable opportunity to present it’s case.

Case management is important however, the ultimate aim of the court is the attainment of justice and principles of case management cannot supplant that aim.

The accused’s right in criminal proceedings to a hearing without undue delay.

The requirement to accord procedural fairness extends to both the defence and the prosecution in criminal proceedings.

The case of DPP v Chaouk & Anor [2010] NSWSC 1418 also addresses the statutory scheme for service of briefs in summary matters.

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CRIMINAL PROCEDURE ACT 1986 - SECT 40

40 Adjournments generally

(1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so.

(2) An adjournment may be in such terms as the court thinks fit.

(3) A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment.

(4) Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.

CRIMINAL PROCEDURE ACT 1986 - SECT 216

216 Costs on adjournment

(1) A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.

(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.

(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.

(a) an order in the nature of certiorari, pursuant to the terms of s69 of the Supreme Court Act, calling up the record of the Local Court sitting in its criminal jurisdiction in proceedings of Police v Gursel Ozakca and the orders of his Honour Magistrate McIntosh of 30 May 2006 refusing an application for adjournment made by the prosecution and dismissing the proceedings

(b) an order in the nature of certiorari quashing the aforesaid decisions of the learned Magistrate

(c) a declaration that the jurisdiction of the Magistrate in the aforesaid matter has constructively not been exercised

(d) an order that the matter be remitted to the Local Court to be dealt with in accordance with law

(e) an order pursuant to the terms of s28 of the Bail Act 1978 that the defendant be granted bail in relation to the charges now pending before the Local Court on the same conditions as previously existed, such conditions to be confirmed within 48 hours of the publication of this judgment

(f) the plaintiff shall pay the defendant’s costs of the proceedings before the Magistrate of 30 May 2006 and of these proceedings, as agreed or assessed.

JUDGMENT:

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ROTHMAN J

21 December 2006

14395/2006

Director of Public Prosecutions v Gursel Ozakca & Anor

JUDGMENT

1 ROTHMAN J: The Director of Public Prosecutions seeks orders in the nature of certiorari and mandamus, together with consequential declarations, against the second defendant his Honour John McIntosh LCM in relation to the refusal of an adjournment sought by the plaintiff in the proceedings before the learned Magistrate. The plaintiff also seeks redress pursuant to the provisions of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”). The plaintiff appeals, pursuant to s56(1)(c) of the Appeal and Review Act, the order dismissing the matter and seeks leave, pursuant to the terms of s57(1)(c) of the Appeal and Review Act, to appeal the interlocutory decision refusing the adjournment. The primary remedy sought is certiorari and mandamus.

2 The proceedings before the learned Magistrate were proceedings relating to a number of offences, being a number of counts of contravening apprehended domestic violence order and use carriage service, being a telephone, to menace. The offences were said to have occurred between 2 and 9 November 2005.

3 On 9 November 2005 the first defendant was charged by Court Attendance Notice, appeared and bail was refused. The first defendant remained in custody, bail refused, from 9 November 2005 until 13 January 2006. On 13 January 2006 the first defendant was granted bail, which he entered on 14 January 2006.

4 The matter came before the Local Court on 24 March 2006 and a hearing date was fixed for 30 May 2006.

5 The offences charged relate to a single victim.

6 On or about 11 May 2006 the victim left Australia to attend to her father who was seriously ill due to a severe heart condition. On 13 May 2006 the informant endeavoured to contact the victim and was informed of the emergency in Turkey and the fact that the victim had left Australia temporarily. Contact was eventually made with the victim and the victim endeavoured to arrange her flights so that she would arrive in Sydney and be available to give evidence on 30 May 2006, the date of the listing.

7 The prosecutor contacted legal representatives of the accused and informed them of the position and that the prosecutor would be seeking an adjournment.

8 When the matter came before his Honour below there was initially no appearance by the legal representative for the defendant who had been apparently delayed. The accused was in attendance. Also in attendance were interpreters that were required for the purpose of cross-examining witnesses and another interpreter whom the defence wished to cross-examine because of that person’s role in the police interview.

9 When the legal representative of the defendant attended he confirmed to the Court the receipt of prior notice of the adjournment application in the following terms:

“My understanding your Honour is that the matter’s not ready to proceed today and I had the courtesy of a call from the informant on that.”

That was the only statement made by either the accused or his legal representative during the adjournment application. The adjournment application was not opposed by the accused.

10 After the refusal of the adjournment application, the matter proceeded a short way into the hearing but ultimately, because of the absence of evidence from the victim, there was no prima facie case and all matters were determined on the basis of no prima facie case and the charges were dismissed. The victim was expected to arrive home at 8pm on that evening.

A Refusal of Adjournment: General Principles

11 The general principle which applies to a decision to refuse (or grant) an adjournment application is that such a decision is a matter wholly within the discretion of the court or tribunal. An appeal against such a decision is an appeal against a discretionary decision and will be subject to interference by an appeal court only on one of the well known bases dealing with discretionary judgments: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 – 505.

12 For an appeal court to interfere with an exercise of discretion there must be a basis other than that it would have taken a different course. There must be error. That error must either be identifiable or manifest. If identifiable it must be based upon wrong principle, mistake of fact or law or the failure to take into account all and only relevant matters.

13 However, in these proceedings the plaintiff does not put its case on the basis of an exercise of discretion. It seeks prerogative relief on the basis of, inter alia, a denial of natural justice. The Court raised with the parties during the course of the short hearing the judgment of Justice Deane in the following terms:

“A refusal to grant an adjournment can constitute a failure to give a party to the proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans’ attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher [1968] 1 WLR 1478). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.” (Sullivan v Department of Transport (1978) 20 ALR 323 at 343, Full Court Federal Court of Australia, per Deane J with whom relevantly Fisher J agreed).

14 In circumstances described in the forgoing passage the refusal of an adjournment takes on a different character from the exercise of a discretion and, in such circumstances, is a denial of natural justice requiring different considerations than a simple exercise of discretion. In the instant proceedings the Magistrate refused the adjournment application in circumstances where his major consideration was case management. After reciting the history of listings for the purpose of setting hearing dates and the fact that the brief had been served on 13 January 2006 and that it had been set for 24 March 2006 to fix a date his Honour said:

“On 24 March over to 30 May, today, for hearing. Listed for 3 hours. There are two Turkish interpreters were requested. One for, I take it, the alleged recipient of the telephone calls ... and for the accused. ... those two interpreters are present and there is a third interpreter. ... so this is an expansive exercise. ... there was a third interpreter present who the prosecutor has indicated was present when an interview was conducted with the defendant and questions need to be asked of the interpreter as to that – I take it, it is his interpretation at the time of the interview. This is the second time that has happened to me, where I have had an interpreter questioned about interpretation and I haven’t stopped talking about the first time because it is so unusual, I have to say. ... we have got interpreters interpreting for interpreters and so forth. ... so today, 30 May, the prosecutor has made an application for adjournment. The recipient of the alleged telephone call or alleged recipient of the alleged telephone calls ... had been called to Turkey because her father has a heart condition. She left for Turkey on 11 May and she is due back tonight, 30 May. A subpoena issued for her attendance on 13 May, unfortunately. I cannot help but come to the view that I think the subpoena should have been issued before she left so that appropriate arrangements could have been made by her to be back for today, but the informant is not to know that she was going overseas, but ideally, the subpoena would have issued soon after 24 March rather than mid May, so I mean – as I have already indicated, I mean no criticism of the informant at all.

The prosecutor’s alternate position is that the matter commence today and go over part heard to allow the attendance of the alleged victim, for want of better terminology, but this case has a long history. First before the Court on 10 November. The accused spent two months in custody, just over. The matter has just been listed since 24 March, two and a half. Well over two months for the matter to be ready to proceed today. There are three interpreters present today. Two of those would have to return on another day. There are only two prosecution witnesses to give evidence today. The matter would roughly take an hour, an hour and a half, I think the prosecutor has indicated. ... then have to go over part heard. In view of all the material before me, I am of the view – what I’ve asked the prosecutor to outline the allegations. He has done so. In light of all the material – I am of the view I should not grant the application Mr prosecutor for an adjournment.”

15 The High Court has examined the issue of the appellate review of a refusal of an adjournment and developed the principles adumbrated by Justice Deane when a member of the Federal Court. In Sali v SPC Limited [1993] HCA 47; (1993) 67 ALJR 841 at 843, the High Court (Brennan, Deane and McHugh JJ) said:

“In Maxwell v Keun [1928] 1 KB 645 at 650, 657, 658 the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.”

16 Their Honours go on to deal with the concept of case management and the importance of understanding the congestion of court lists. However case management of itself is not a basis upon which an adjournment which renders an injustice to the applicant should be refused. The High Court has said:

“Sali v SPC was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.” (Queensland v JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 at 154, per Dawson, Gaudron and McHugh JJ)

Adjournment: Criminal Proceedings

17 The above statements of the High Court (and of Deane J when a member of the Federal Court) set out the general principles that apply to an adjournment application. However, in the current circumstances there are different emphases. It is a quite different situation when that which is sought to be adjourned is a criminal prosecution. In a criminal prosecution the factors associated with the “injustice to any other party” or “the only way that justice can be done to another party in the action” (see Sali, supra) take on a far greater significance.

18 Counsel for the plaintiff relies in her submissions on Alexandroaia (1995) 81 A Crim R 286 which applies the reasoning in Maxwell v Keun (and other cases) to the criminal jurisdiction. In that case, the Court of Criminal Appeal (Hunt CJ at CL, Grove and Dunford JJ) said:

“Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. An appeal based upon the judge’s refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give wait or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellant court may infer that there has been a failure properly to exercise that discretion. An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge’s exercise of discretion it is under a duty to review the order made.” (at 290)

19 Alexandroaia was a judgment concerning an application for an adjournment by an accused. A different balancing exercise arises when the application for adjournment is made by the State:

“In criminal proceedings, judges are entitled to take into account considerations such as the accused’s right to a hearing of charges brought by the State, without undue delay. Such judges are also entitled to take into account proper and efficient case management, case flow and the demands of other litigation.” (Blazevski v District Court Judges of New South Wales (1992) 29 ALD 197 at 200)

20 Blazevski was also a case in which the accused sought an adjournment because of the unavailability of counsel and the trial judge, according to the Court somewhat peremptorily, refused the adjournment.

21 There are very few instances in the superior courts where consideration has been given to an adjournment application made by the prosecutor. While the principles must be the same, the weighing of justice as between the parties takes on other considerations. One of those considerations, going to the injustice to the accused, is one of the concepts which underpin the principles in double jeopardy.

22 In the instant proceedings, the prosecutor attends the Court below, seeks an adjournment, has the adjournment refused, commences the proceedings and the charges are dismissed against the accused. The plaintiff now seeks for those dismissed proceedings to be reagitated and there are serious aspects to such a course. There will be numerous occasions when, even where there is an error of law in the refusal of an adjournment, an appellate court will exercise its discretion and refuse a remedy.

Prosecutor’s Application: Double Jeopardy

23 In circumstances where it is the prosecutor that is seeking an adjournment of proceedings that are otherwise listed for hearing the matter will be, a fortiori, within the discretion of the Magistrate. It will take exceptional circumstances before an appellate court, exercising rights of appeal or prerogative relief, will interfere with such an exercise.

24 In dealing with the issue of double jeopardy the High Court (Pearce v Queen (1998) 194 CLR 610 at 614) cited with approval the judgment of the US Supreme Court in the following passage:

“If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States [1957] USSC 146; (1957) 355 US 184 at 187 – 188:

‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.’

That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. ...

It may be seen as a value which underpins and affects much of the criminal law.” (Pearce at [10], per McHugh, Hayne and Callinan JJ)

25 It cannot be stressed enough that the elements associated with the right of an accused to escape the continuing state of anxiety and insecurity that necessarily accompanies a criminal charge must be paramount in any review by an appellate court of the exercise of discretion to refuse to adjourn. The accused is entitled to expedited justice. It is only in exceptional circumstances that an appellate court will interfere to require such a right to be overtaken by inconvenience associated with the unavailability of a witness.

Conclusion

26 However, in the present circumstances, the following situation arises:

(a) the unavailability of the witness, who is also the victim, was caused by circumstances beyond her control;

(b) the unavailability was associated with an emergent and urgent illness overseas of a member of her immediate family;

(c) notwithstanding the requirement for her to be overseas, the victim still made attempts to be in attendance at the court;

(d) the uncontroverted material before the Magistrate was that it was impossible for her to return earlier;

(e) the prosecutor had notified the accused prior to the hearing of the fact that they were seeking an adjournment and the reasons for that adjournment;

(f) the accused was not in custody at the time; and

(g) the defendant did not oppose the adjournment.

27 There is little doubt that the effect of the refusal of the adjournment was to deny the prosecutor justice and the opportunity of properly presenting its case. In the exceptional circumstances outlined above, the rights of the accused to a speedy trial do not outweigh the requirement on the Court to provide to the prosecutor a proper opportunity of presenting its case. There is a denial of natural justice and, thereby, a constructive failure to exercise the jurisdiction conferred.

28 The determination that the Magistrate has constructively failed to exercise the jurisdiction has the consequence that the charge has not been dealt with and is still before the Local Court. The jurisdiction of the Local Court, having been enlivened by the laying of the charges, remains undetermined: that is, the constructive failure to exercise jurisdiction left “the jurisdiction in law constructively unexercised”: see MIMA v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [53]; ex parte Hebburn Limited v Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420 per Jordan CJ.

29 On that basis, mandamus (or orders in the nature of mandamus) will issue to compel its exercise.

30 Further, the charge (and the status of the defendant) is as it was immediately before the hearing on 30 May 2006. On the view that I take, the defendant/accused is still on bail (or entitled to be). Of course, he could not be punished for any breach of that bail between 30 May 2006 and today. If I am wrong, then I would grant bail forthwith and, for abundant caution, I do so. It is an essential aspect of the discretion that I exercise in quashing the orders that the accused is not, and was not, in custody.

31 Further, I should make clear that the circumstances of the dismissal of these proceedings by the Magistrate and their reinstatement by this Court would undoubtedly have an effect on the accused/defendant and, if he is convicted, should properly be considered to his benefit on sentence. I do not have material that would allow any further comment on that issue; nor is it appropriate.

32 Lastly, I deal with costs. The plaintiff sought an adjournment of the proceedings below. The costs of that day must be borne by the plaintiff. Since it was the plaintiff’s witness’ unavailability that has caused all of this aspect to be litigated, and in circumstances where the defendant did not oppose the adjournment application, the costs of these proceedings also ought be borne by the plaintiff.

Orders

33 In the exceptional circumstances of this case, I find that the prosecutor has been denied natural justice and I make the following orders:

(a) an order in the nature of certiorari, pursuant to the terms of s69 of the Supreme Court Act, calling up the record of the Local Court sitting in its criminal jurisdiction in proceedings of Police v Gursel Ozakca and the orders of his Honour Magistrate McIntosh of 30 May 2006 refusing an application for adjournment made by the prosecution and dismissing the proceedings;

(b) an order in the nature of certiorari quashing the aforesaid decisions of the learned Magistrate;

(c) a declaration that the jurisdiction of the Magistrate in the aforesaid matter has constructively not been exercised;

(d) an order that the matter be remitted to the Local Court to be dealt with in accordance with law;

(e) an order pursuant to the terms of s28 of the Bail Act 1978 that the defendant be granted bail in relation to the charges now pending before the Local Court on the same conditions as previously existed, such conditions to be confirmed within 48 hours of the publication of this judgment;

(f) the plaintiff shall pay the defendant’s costs of the proceedings before the Magistrate of 30 May 2006 and of these proceedings, as agreed or assessed.

1 JOHNSON J: By an Amended Summons filed 2 September 2010, the Plaintiff, the Director of Public Prosecutions (NSW), seeks relief in respect of the dismissal by a Magistrate at the Parramatta Local Court on 7 October 2009 of charges laid against the First Defendant, Basame Chaouk, of affray and being armed with intent to commit an indictable offence.

2 The Plaintiff seeks declaratory and prerogative relief and, in the alternative, an order under s.59(2)(a) Crimes (Appeal and Review) Act 2001 setting aside orders made on 7 October 2009 and remitting the proceedings to the Parramatta Local Court to be heard and determined according to law.

3 At the hearing of the Amended Summons on 26 November 2010, Mr Bourke of counsel appeared for the Plaintiff. The First Defendant appeared unrepresented. A submitting appearance had been filed on behalf of the Second Defendant, the Local Court of New South Wales. The First Defendant had been unrepresented when the matter came before Price J for hearing on 6 August 2010, with an adjournment being granted to him to seek legal representation. On 26 November 2010, the First Defendant was still unrepresented and the matter proceeded to hearing.

Factual Background

The Incident on 16 January 2009

4 As at January 2009, the First Defendant and Shane Towney had been neighbours for approximately two years, residing in a street in Granville. Mr Towney lived directly across the road from the First Defendant. The relationship between them was characterised by much animosity.

5 About 11.40 am on 16 January 2009, the First Defendant arrived home. At the time, Mr Towney was placing his council bin at the front of his premises across the road. It is alleged that the First Defendant looked at Mr Towney and said words to the effect of “What are you doing, fat boy?” An argument then ensued with both hurling abuse at one another. Both remained on opposing sides of the street. However, the argument became increasingly heated, with the First Defendant yelling “I’m gunna fix you”.

6 It is alleged that the First Defendant went inside his house for a short time and Mr Towney remained on the other side of the street. The First Defendant then returned, brandishing a silver knife with a 15 centimetre fold-out blade, which he was carrying in his right hand. It is alleged that he stormed across the street towards Mr Towney, who saw the knife upon approach, but stood his ground. The First Defendant is alleged to have approached Mr Towney, raised his right hand and jabbed Mr Towney to the upper-left cheek with the knife in hand. This action caused Mr Towney immediate pain and opened an eight centimetre abrasion to his upper-left cheek. It is alleged that Mr Towney then said to one of his young children, who was present throughout, “Go and get me a knife”.

7 It is alleged that the First Defendant then retreated across the street to his front yard. Both men continued to hurl abuse at each other from opposite sides of the street. Mr Towney is alleged to have said words to the effect “If you want a fight, we’ll go at it in the street like men. Anyone can use a knife”. It is alleged that one of Mr Towney’s sons then returned with what is described as a butcher’s knife. He gave it to Mr Towney, who then charged into the middle of the street yelling “If you want to fight, come over here” whilst waving the knife, described as having a black handle and a silver blade and being about 20-30 centimetres in length.

8 The First Defendant is then said to have retreated further to the front porch of his home, whilst Mr Towney moved onto the front driveway of the First Defendant’s home, continuing to entice him into a further confrontation. At that point, an independent witness and Mr Towney’s wife both contacted the police. It is alleged that, upon hearing that the arrival of police was imminent, Mr Towney gave the knife back to his son and advised him to return it to its kept place.

9 It is alleged that, at about 11.55 am, police arrived at the scene and placed the First Defendant under arrest. It is said that police questioned the First Defendant as to the whereabouts of the knife used by him, and he led police into his kitchen and showed them where he put the knife.

10 It is said that Mr Towney was questioned by police, who initially denied ever producing a knife during the altercation. However, an independent witness came forward at the scene and informed police of his observations. Mr Towney was cautioned and questions were put to him in relation to the production of a knife, with him allegedly then stating that he had a knife, but had returned it to his kitchen prior to the arrival of the police.

11 Both the First Defendant and Mr Towney were conveyed to Parramatta Police Station and advised of their rights. Each was invited to participate in an electronically recorded interview by way of an ERISP. The First Defendant declined to be interviewed. Mr Towney chose to participate in an ERISP and, during the interview, made admissions to producing what he described as a “butcher’s knife” although he stated that he remained on his property and had no intention of using it. This statement contradicted that made by the First Defendant (presumably orally to the police before attending the police station) and that of an independent witness.

13 The proceedings against the First Defendant came before the Parramatta Local Court on a number of occasions for mention, with an order being made for the prosecution brief to be served and for the defence to reply to the brief. On 27 May 2009, the charges against the First Defendant were fixed for hearing on 7 October 2009 at the Parramatta Local Court.

14 The police brief of evidence was served on the defence on 10 September 2009.

15 The matter came before the Parramatta Local Court for hearing on 7 October 2009. The prosecutor informed the Court that the charges of affray and being armed with intent to commit an indictable offence were to proceed (by way of summary hearing) with the charges of assault occasioning actual bodily harm and common assault being backup charges. The First Defendant was represented by counsel at the hearing on 7 October 2009.

16 At the outset, the prosecutor informed the Magistrate that Mr Towney was to be called by the prosecution, that a subpoena had been served for his attendance and that he was not yet at Court. Discussion ensued during which the First Defendant’s counsel informed the Court that, although Mr Towney’s ERISP had been served upon the defence, he had not made a written statement as a witness.

17 Whilst discussion continued concerning the absence of a written statement, Mr Towney arrived at Court. His Honour allowed a short adjournment for the prosecutor and the First Defendant’s counsel to discuss the issues in the case.

18 Upon resumption, the prosecutor made application under s.188(2) Criminal Procedure Act 1986 to dispense with the requirements of s.188(1), so as to permit evidence to be adduced from Mr Towney, although the relevant statutory requirement for service of a written statement from him had not been met. The prosecutor referred his Honour to the decision of the Court of Appeal in Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647 in support of the application.

19 The First Defendant’s counsel opposed the prosecutor’s dispensation application under s.188(2) (pages 5-6, 7 October 2009). During the course of submissions to the Local Court, defence counsel said (page 6.2, 7 October 2009):

“It is my submission that if the prosecution are in a position to take the statement [from] the witness [Mr Towney] that an adjournment to allow that to proceed and an adjournment to allow that new evidence to be properly considered and instructions taken would be an appropriate way of correcting the defect in this case.”

20 Soon after, defence counsel submitted to his Honour that the ERISP recording was not a written statement for the purpose of s.183 Criminal Procedure Act 1986 and, as a result, no written statement had been served by the prosecution as part of the brief of evidence. He submitted (page 6.23, 7 October 2009):

“The criteria outlined in [Director of Public Prosecutions v West] I would submit provides a recourse for the court to turn to to remedy that and that is to grant an adjournment for taking of that statement and then the service of it. If that is my friend’s application to adjourn the proceedings to allow for that statement to be taken, then I would consent to that adjournment. But at this stage in the absence of a statement, a written statement being in existence taken from Mr [Towney] that to proceed with the case and seek to rely simply on the ERISP recording.”

21 Although the transcript prepared from the sound recording of the hearing is slightly confusing in the lastmentioned passage, it is clear that the position of the First Defendant’s counsel at the Local Court hearing was:

(a) to oppose an order being made under s.188(2) which would have permitted the hearing to proceed that day, with Mr Towney being called to give evidence without a written statement (although the ERISP may have provided some understanding of his likely evidence);

(b) to consent to an adjournment of the hearing, to allow a written statement to be taken from Mr Towney which would then be served for the purpose of the relisted hearing of the matter.

22 At this point, the Magistrate expressed dissatisfaction that the absence of a written statement from Mr Towney was being addressed for the first time on the date fixed for hearing, with neither the prosecutor nor the First Defendant’s solicitor having adverted to the issue on a prior occasion (pages 6.36-7.15, 7 October 2009).

23 The prosecutor then stated that the primary application was to allow the evidence of Mr Towney to be admitted that day (the s.188(2) application) with an alternative application being for an adjournment (page 7.22, 7 October 2009).

24 A further exchange took place between his Honour and the prosecutor, before his Honour refused both of the prosecutor’s applications. It is appropriate to set out the totality of what was said from the time that the prosecutor ventilated the adjournment application (pages 7.31-9.16, 7 October 2009):

“HIS HONOUR: I understand your submission. Is it your understanding then that the informant and whoever checks his work were under the impression that this was a normal procedure?

HIS HONOUR: I find this whole thing to be irritating in the extreme, and I'm not blaming you, Ms Nightingale [the prosecutor].

PROSECUTOR: Thank you, your Honour.

HIS HONOUR: At the end of the day this is something quite extraordinary and for nobody to have noticed since April, on either side, that this quite extraordinary is beyond my understanding. Now what you are doing, and I am saying this for the record rather than simply to attack your position, but what you are doing is asking me to exercise a discretion without any foundation for its exercise beyond saying it would be nice to have this evidence in. The procedures which were established and formalised by the chief magistrate in, as I understand it, complete cooperation with the then Commissioner of Police - yes, you may sit; sit down.

PROSECUTOR: Thank you, your Honour.

HIS HONOUR: Those procedures were formalised for the purposes of not having to have these discussions. Now if some idiot has told your officer in charge that, ‘Oh this will do that, you know, the dumb magistrate on the day will concede to it going in notwithstanding that the whole thing is about prejudice or possible prejudice to the defendant,’ then I find that quite frightening. I thought, I was under the impression from the police spin in the media that the quality of police education in these matters had improved and that circumstances like this were never going to happen again; but it's not the case sadly and it's not just this case that brings it to notice. But I don't see anything in what you've put to me which explains why the procedure wasn't followed.

Now without that, how can you properly expect me to exercise a discretion beyond saying that it would be nice to have the evidence in because it's all terribly important. But if it was so important, why didn't they get it right in the first place? I can't accede to your proposition. I think that the prosecution has failed to comply with the elements of the Criminal Procedure Act and in those circumstance for me to exercise a discretion under s 188 without being given any possible foundation or reason for doing it, or explanation as to why this extraordinary course was followed by the prosecution, without that how can I be reasonably asked to do anything?

It's the defendant who's here today to answer the matter. I think that there are problems in the way the defendant's advisers have responded to this issue prior to this day. There is no explanation in the material that is being maintained by the court to explain how it arrives today with an inadequate and in my view inadmissible prosecution brief. I find my situation to be impossible and in the circumstances the prosecution application is denied. Does that mean then that you have no other evidence which you can bring?

PROSECUTOR: Your Honour, can I just clarify? Is the application in terms of the adjournment also refused?

HIS HONOUR: Yes.

PROSECUTOR: Thank you, your Honour.

HIS HONOUR: Well, to make it clear, the defendant is here to answer the charge, I can't honestly see that the situation is likely to improve greatly by adjourning. I don't from what I've heard so far I don't see that this is a case which is life and death to the administration of justice in New South Wales, but if it was, why wasn't it done properly? The defendant is here, he has a lawyer which I presume he's paying; under the circumstances, why should he be asked to go back when the prosecution could have done it right the first time?

PROSECUTOR: Your Honour, it's on that basis that the prosecution have no evidence to offer.

HIS HONOUR: Thank you, Ms Nightingale.

PROSECUTOR: Thank you, your Honour.

HIS HONOUR: In the circumstances, your client is discharged. I don't know what the background of all of this was, I think it's all very unfortunate that he finds himself here today. I trust that he won't allow himself to get into whatever situation he was that caused this again. You can be excused.

MORTIMER: Thank you, your Honour.”

25 The Plaintiff commenced proceedings in this Court on 13 January 2010 challenging the decision of the Magistrate on 7 October 2009, which had effectively brought to an end the prosecution of the First Defendant with respect to these matters.

Statutory Scheme for Service of Briefs of Evidence for Summary Hearings

26 Offences of affray (s.93C(1) Crimes Act 1900) and being armed with intent to commit an indictable offence (s.114(1)(a) Crimes Act 1900) are both Table 1 offences for the purposes of the Criminal Procedure Act 1986, and are to be dealt with in the Local Court unless an election is made by the prosecutor or the accused person for trial on indictment: s.260 Criminal Procedure Act 1986. The maximum penalty which can be imposed for each offence in the Local Court is imprisonment for two years: s.267 Criminal Procedure Act 1986.

27 No election was made for trial on indictment. Accordingly, the hearing of these matters in the Local Court on 7 October 2009 was to proceed as a summary hearing, thereby attracting pretrial procedures contained in ss.182-189 Criminal Procedure Act 1986. In particular, it is important to observe that ss.183, 186, 187 and 188 Criminal Procedure Act 1986 applied to these proceedings. Those provisions state:

“183 Brief of evidence to be served on accused person where not guilty plea

(1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence.

(2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include:

(a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and

(b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit.

(3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution.

(4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it.

...

186 Form of copy of brief of evidence

(1) The copy of the brief of evidence is to comply with any requirement applicable to it prescribed by the rules.

(2) A written statement contained in the brief of evidence is to comply with this Act and any requirement applicable to it prescribed by the rules.

187 When brief of evidence need not be served

(1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied:

(a) that there are compelling reasons for not requiring service, or

(b) that it could not reasonably be served on the accused person.

(2) The court may make an order under this section on its own initiative or on the application of any party.

(3) An order may be made subject to any conditions that the court thinks fit.

(4) Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence.

(5) A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations.

188 Evidence not to be admitted

(1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor.

(2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.”

28 Section 183(1) requires service by the prosecutor of a brief of evidence upon the accused person, and s.183(2)(a) requires that the brief of evidence is to include “written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence”. Section 183(3) requires a copy of the brief of evidence to be served at least 14 days before the hearing of the evidence for the prosecution with provision, in s.183(4), for the Magistrate to set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it.

29 Section 186(2) provides that a written statement contained in the brief of evidence is to comply with the Act and any requirement applicable to it prescribed by the rules. Rule 3.13 of the Local Court Rules 2009 provides as follows:

“3.13 Written statements in briefs of evidence

(1) A written statement that is included in a copy of a brief of evidence may be in the form of questions and answers.

(2) A written statement that is included in a copy of a brief of evidence must:

(a) specify the name and age of the person who made the statement, and

(b) be endorsed in accordance with rule 3.6 (1) and (2) by the maker of the statement, and

(c) be written in a language of which the person who made the statement has a reasonable understanding, and

(d) be signed by the person who made the statement.

(3) If the person is unable to sign the written statement, the statement may be signed by another person with the consent of and in the presence of the person who made the statement.

(4) The other person must sign an endorsement on the statement to the effect that the person signed the statement on behalf of, with the consent of and in the presence of the person who made the statement.

(5) A written statement must be signed by another person as a witness to the signing of the statement by the person who made it or as a witness to the signing by another person on the maker’s behalf (if applicable).

(6) If a copy of the brief of evidence includes any written statement that is, wholly or in part, in a language other than English, there must be annexed to it:

(a) a document purporting to contain a translation of the statement, or so much of it as is not in the English language, into the English language, and

(b) a certificate by the translator stating his or her qualifications and certifying that the translation is a correct translation of the document.“

30 It will be observed that Rule 3.13(2)(b) requires a written statement to be endorsed in accordance with Rule 3.6(1) and (2) by the maker of the statement. Rule 3.6 Local Court Rules 2009 is in the following terms:

“3.6 Endorsement and certification of written statements

(1) Subject to subrule (2), an endorsement referred to in section 79 (3) of the 1986 Act is to be in or to the effect of the following form:

‘This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.’

(2) In the case of a child, or an adult who is apparently of appreciably below average intelligence, it is sufficient if the endorsement includes:

(a) words to the effect that the statement is true, or

(b) words to the effect that the statement contains no lies.

(3) A written statement that is in a language other than English and has a document purporting to contain an English translation of the statement or part annexed to it in accordance with section 79 (5) of the 1986 Act must also have annexed to it a certificate by the translator stating his or her qualifications and certifying that the translation is a correct translation of the document.“

31 At the hearing in this Court, counsel for the Plaintiff accepted that an ERISP was not a written statement for the purpose of these provisions. In particular, it was accepted that Mr Towney’s ERISP did not comply with Rule 3.13(2)(b) and (d) Local Court Rules 2009 in that it did not carry the endorsement required by Rule 3.6(1). Further, it was not signed by Mr Towney so as to comply with Rule 3.13(2)(d).

32 It is noteworthy that Rule 3.13(1) provides that a written statement may be in the form of questions and answers. The provisions do not require a narrative statement only. However, it is necessary that the written statement (even in the form of questions and answers) include the endorsement by the witness that the statement accurately sets out the evidence that the witness would be prepared to give, and that the statement is true to the best of the witness’ knowledge and belief and that the witness is making the statement, knowing that if it is tendered in evidence, then he or she will be liable to prosecution if he or she has wilfully stated in it anything known to be false or not believed to be true. This endorsement is no formality. It is intended to ensure that the witness understands the importance of the statement, the need for truth and accuracy and the consequences of the making of any knowingly false statement.

33 Of course, an ERISP is in the form of questions and answers. Ordinarily, there will be no controversy concerning the accuracy of the recording of what was said by the person being interviewed, given the electronic measures used for that purpose. However, a person being interviewed by way of an ERISP is ordinarily a suspect, being interviewed under caution. The person is not being interviewed, at that stage at least, as a possible witness in proceedings against another person. There is a significant difference between an interview with a suspect conducted by way of an ERISP, and a written statement from a witness taken for the purpose of inclusion in a brief of evidence under s.183 Criminal Procedure Act 1986.

34 It might be said that service of an ERISP given by a person proposed to be called as a witness is better than the absence of any document containing the account of the person who is to be called. If the person refuses to make and sign a written statement which complies with the legislative scheme, then it may be that service of an ERISP from a person whom the prosecution seeks to call will be a necessary step, in support of a prosecution application under s.188(2), that the Court dispense with the requirements of s.188(1) so as to permit that person to give evidence.

35 However, that is not this case. There was no suggestion in the Local Court that police had sought to obtain a written statement from Mr Towney but that he had refused to give one. The position appears to have been that the view was formed by one or more police officers that service of Mr Towney’s ERISP would suffice, accompanied by the service of a subpoena directed to him to attend Court on the hearing day.

36 As the Magistrate described in direct terms, this approach was clearly wrong. To comply with the statutory scheme, it was necessary for the prosecution to obtain a written statement from Mr Towney containing the necessary endorsement, as well as his signature. This was not done.

Submissions of the Parties

37 Although Mr Bourke submitted that the Magistrate had fallen into error in declining the prosecutor’s dispensation application under s.188(2), which would have permitted Mr Towney to be called as a witness on the hearing, his primary submission was that the refusal to adjourn proceedings gave rise to a denial of procedural fairness. I will concentrate on this argument, which I propose to uphold. Mr Bourke submitted that the following particular features pointed to error in the refusal of the adjournment so as to constitute a denial of procedural fairness.

38 Firstly, the Magistrate did not take into account the serious nature of the charges, rather taking a contrary view that the alleged offences were, in some way, not serious.

39 Secondly, it appears that his Honour gave little or no weight to the fact that the First Defendant’s counsel had consented to an adjournment of the proceedings.

40 Thirdly, it was submitted that no regard was had to the fact that this was the first time the matter had been listed for hearing.

41 Fourthly, it was submitted that the refusal of the adjournment was fatal to the prosecution case, so that the refusal of an adjournment denied a party a hearing.

42 Fifthly, it was submitted that there was a need to balance the important requirement of the speedy and efficient determination of proceedings with the due administration of justice, whereby serious criminal charges were determined on the merits.

43 Sixthly, it was submitted that the Magistrate’s decision was flawed because of a failure to give adequate reasons.

44 The Plaintiff submitted that the Magistrate’s discretion was, in effect, not exercised at all, and that there appears to have been an element of punishment of the prosecution in the decision to refuse the adjournment application.

45 The thrust of the First Defendant’s submissions was that the proceedings should not go back to the Local Court, given the fact that he had a defence to the charges and by reference to various steps which the First Defendant said he had taken to get his life on track. No specific submission was directed to the grounds of the Plaintiff’s claim for relief, with the First Defendant’s submissions going to the exercise of any residual discretion to decline to send the matter back to the Local Court.

Determination of Proceedings

46 In my view, the strength of the Plaintiff’s case and the resolution of these proceedings lies in the area of the Magistrate’s refusal to adjourn the Local Court hearing. As Mr Bourke acknowledged, the challenge to the Magistrate’s ruling on the s.188(2) application is complicated by the absence of any satisfactory explanation by the prosecutor as to why a written statement had not been sought from Mr Towney. The prosecution position appears to have arisen from an erroneous view concerning the use of an ERISP, when it ought to have been clear that Mr Towney’s ERISP did not comply with the requirements for a written statement.

47 Section 187(4) Criminal Procedure Act 1986 provides that the Local Court may adjourn proceedings, if it appears to be just and reasonable, where a brief of evidence has not been served in accordance with the statutory scheme. In Director of Public Prosecutions v West, consideration was given (at 655-657 [24]) to s.66G Justices Act 1902, the statutory predecessor to s.187(4). Section 187(4) is not identical in terms to s.66G. It is clear that s.187(4) reposes a discretion in the Local Court to adjourn proceedings if it appears to be just and reasonable to do so.

48 In Watson v Watson (1968) 70 SR(NSW) 203 at 206, Asprey JA observed (at 206E) that, whilst it is the paramount duty of the court to see that justice is done, nevertheless “in doing justice a court proceeds on a two-way street and in the exercise of a discretion the rights of both the parties to the litigation must be considered”.

49 The requirement to accord procedural fairness extends to both the defence and the prosecution in criminal proceedings: The Queen v Lewis [1988] HCA 24; 165 CLR 12 at 17.

50 In Blazevski v Judges of the District Court (1992) 29 ALD 197, Kirby P (as his Honour then was) referred to cases where appellate courts will intervene on an appeal against the refusal of an adjournment, and said at 200:

“In ‘particular circumstances’, therefore, appellate courts will resolutely intervene both for the assurance of justice and the manifest appearance of justice and to uphold the integrity of the system of justice. See R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 (CA) at 258. Courts providing judicial review to rectify departures from the requirements of procedural fairness will likewise give relief for departures from such requirements which will have taken the trial court outside the proper exercise of its jurisdiction. In criminal cases, they will do so where the injustice has been done to the prosecution as well as to the accused. See for example R v Dudley Justices; Ex parte Director of Public Prosecutions, (Times Law Reports, 24 June 1992) at 10 (Mann LJ).”

51 In Nitiva v Director of Public Prosecutions [1999] NSWCA 332, the Court of Appeal (Sheller and Beazley JJA and Cole AJA) said at [64]:

“The principles upon which an adjournment ought to be granted are well established. The court has a discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: see Sullivan v Department of Transport (1978) 20 ALR 323. As Deane J said in that case at 343 ‘... it is important to remember that the relevant duty of the court is to ensure that a party is given a reasonable opportunity to present his case’.”

52 In the context of an appeal from a Magistrate’s decision refusing a prosecutor’s adjournment application, it was observed that, whilst the power to adjourn is discretionary, it must not be exercised so as to work a manifest injustice on one party by depriving a party of a hearing, unless there is no other way to do substantial justice between the parties: Bell v Imrie (Yeldham J, 24 February 1989) 8 Petty Sessions Review 3905 at 3906.

53 A Magistrate may be more inclined to refuse a prosecution adjournment for the hearing of a minor offence as opposed to what might be characterised as more serious offences: McRae v Redmond (Smart J, 7 May 1987) 8 Petty Sessions Review 3534 at 3540-3542. There is a public interest in the determination of criminal charges by a hearing on their merits: Director of Public Prosecutions (NSW) v Fungavaka [2010] NSWSC 917 at [38].

54 The proper exercise of the discretion to adjourn entails a balancing exercise taking into account relevant considerations. These considerations include the gravity of the charges, the public interest in the determination by way of a hearing on the merits of criminal charges, the attitude of the accused person to the adjournment application and the circumstances which have given rise to the application for adjournment. It has been said that the principle of double jeopardy ought also be considered where a prosecution application for an adjournment of criminal proceedings is made: Director of Public Prosecutions (NSW) v Ozakca [2006] NSWSC 1245; 68 NSWLR 325 at 330-331 [17]- [25]. In that case, Rothman J expressed the view that it would take exceptional circumstances before an appellate court, exercising powers of appeal or prerogative relief, will interfere with an exercise of discretion refusing a prosecution application for adjournment (at 331 [23]).

55 It is the case that the First Defendant, through his counsel, consented to the prosecution application for adjournment. This aspect was of fundamental importance to the exercise of discretion whether to adjourn the proceedings. The accused person was not opposing the adjournment, nor contending that double jeopardy considerations ought lead to a refusal of the prosecution application. To the contrary, the First Defendant was consenting to the prosecution application. This was a fundamental factor which, if not controlling the outcome of the application, ought to have weighed heavily in favour of the prosecution application.

56 I am satisfied that the present charges may be appropriately characterised as serious, albeit with the charges to be determined summarily in the Local Court. The prosecution alleges that the First Defendant used a knife during the course of the confrontation, with an injury resulting to Mr Towney’s face. These are not trivial charges. There is a public interest in the hearing and determination of these charges on the merits. The learned Magistrate fell into clear error in downplaying, in the way mentioned earlier at [24], the apparent seriousness of these charges.

57 It was clear that the refusal of the application would be fatal to the prosecution case. The prosecution had Mr Towney in attendance at Court, so that it may well be concluded that a statement would be obtained from him for the purpose of a future hearing. Further, this was the first listed hearing of the matter.

58 The Magistrate was entitled to be concerned that the prosecution had allowed this state of affairs to come about through an apparent fundamental misunderstanding of the requirements for a brief of evidence. His Honour was also entitled to express dissatisfaction that the First Defendant’s legal representative had not raised this issue at an earlier time. However, judicial dissatisfaction concerning the inefficient conduct of the proceedings by the parties should not have controlled the outcome of the adjournment application, which fell to be determined in accordance with the principles referred to at [47] to [54] above, and with the defence consent to the adjournment application being kept firmly in mind.

59 Accepting that this Court should not lightly interfere with the exercise of discretion on an unsuccessful prosecution adjournment application, I am well satisfied that the Plaintiff has established an entitlement to relief in this case. I accept that the appropriate form of relief is an order in the nature of certiorari under s.69 Supreme Court Act 1970. There has been no hearing on the merits, so that the Magistrate’s order of dismissal of the charges should not stand in the way of a grant of such relief: Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 168-171, 173-174.

60 I do not consider that this Court should decline, for discretionary reasons, to remit the matters to the Local Court for hearing. Clear error has been established. There is a real public interest in the determination of these criminal charges on the merits. The appropriate course is that the matters should proceed to a hearing on the merits in the trial court.

Costs

61 The Plaintiff seeks an order for costs against the First Defendant, but submits that it would be appropriate, in the circumstances of the case, that the Court grant the First Defendant a certificate under the Suitors’ Fund Act 1951.

62 I do not consider a costs order should be made in this case. The failure of the police to obtain a written statement from Mr Towney gave rise to the problem in the Local Court. It is true that the First Defendant’s legal representative took the point for the first time on the hearing date, thereby contributing to the problems confronting the Magistrate. However, the First Defendant consented to an adjournment of the Local Court hearing. I have found error in the Magistrate’s refusal to adjourn, despite defence consent to the prosecution application. In this Court, the First Defendant did not argue that there had been no denial of procedural fairness. As a matter of discretion, a costs order should not be made against the First Defendant in these circumstances.

Orders

63 I make the following orders:

(a) an order calling up the record of the Parramatta Local Court relating to the First Defendant on 7 October 2009;

(b) an order in the nature of certiorari quashing the decision of the Parramatta Local Court on 7 October 2009 refusing the prosecution’s application for adjournment;

(c) an order quashing the order of dismissal made by the Parramatta Local Court on 7 October 2009 with respect to the charges brought against the First Defendant;

(d) an order that the proceedings be remitted to the Parramatta Local Court to be heard and determined according to law;